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The decision rejects an
opposing conclusion reached in October by the U.S. Court of Appeals for the Eleventh Circuit but embraces
the view of the Equal Employment Opportunity Commission. It also signals a potential
showdown among federal courts as to who may bring such “disparate impact”
discrimination claims under the Age Discrimination in Employment Act.

That is unless the U.S. Supreme Court addresses the issue first—it’s been asked to
look at the Eleventh Circuit’s ruling. If the justices decide to review that case, they may
be required to wade into the question of how much deference lower courts owe to the
EEOC’s view of the issue.

Parties React to Ruling

Here, PwC failed with its argument that job applicants don’t have the right to sue
for disparate-impact bias and that such claims may only be brought by workers who
were actually hired, the U.S. District Court for the Northern District of California
said Feb. 17.

Disparate-impact claims allege unintended biased effects from policies or practices
that are not explicitly discriminatory. The
lawsuit against PwC challenges the company’s use of a tool for recruiting college students
that can only be accessed by applicants with a current college affiliation.

The Eleventh Circuit in October heard a
similar claim involving R.J. Reynolds Tobacco Co. in which the company allegedly used “resume review
guidelines” and targeted job candidates who were “2-3 years out of college.”
A full panel of that court held only workers who already have been hired may bring
disparate-impact claims and that job applicants may only sue for intentional age discrimination—disparate-treatment
bias.

“PwC fully respects all anti-discrimination laws, but respectfully disagrees with
the court’s interpretation here,” a company spokeswoman told Bloomberg BNA Feb. 21
in an e-mail. “The firm continues to believe that this provision of the ADEA does
not apply to job applicants.”

Lead class counsel Outten & Golden LLP had a different take.

“We’re pleased that the Court followed decades of Supreme Court precedent in confirming
that applicants can challenge age discrimination using the conventional disparate
impact theory,” the firm told Bloomberg BNA Feb. 21 in an e-mail. “Congress was careful
to ensure coverage for all ‘individuals,’
not just employees, and the Supreme Court has repeatedly recognized that the ADEA
should be read like other civil rights statutes like Title VII and the Fair Housing
Act to include these types of claims.”

That approach “is perfectly consistent with Congress’s aim in empowering private individuals
to combat the problem of long-term unemployment of older workers—to achieve that aim,
Congress made sure that applicants can challenge unlawful employment restrictions,”
the firm added.

The section of the law providing a claim for disparate-impact bias uses the phrase
“any individual”
rather than the narrower “employee” in identifying who the provision protects, Tigar
said. Moreover, the term “employees”
is used elsewhere in the section, he said.

It can be assumed that Congress’ "variation in language was a deliberate choice” and
that the “intent was to include all ‘individuals’ within” the disparate-impact section’s
protections, Tigar held.

That reading is supported by Supreme Court cases signaling that disparate-impact claims
may be brought by age-40-and-over job applicants, the judge found.

EEOC’s View Owed Deference

The ADEA language at issue also might be considered ambiguous, given that the Eleventh
Circuit majority has interpreted it in a different way and other courts might also
do so, Tigar said. But even if that’s true, the law should be viewed as allowing job
applicants who are 40 or older to sue for the alleged discriminatory effects of a
facially neutral employment policy like PwC’s college student recruitment tool, the
judge ruled.

When a statute’s meaning is unclear, “courts grant increased deference” to the position
of the federal agency tasked with enforcing the law, Tigar said. In this case, the
enforcing agency is the EEOC, which “has long interpreted the ADEA as permitting disparate
impact claims by job-seekers,” he wrote.

PwC offered no compelling argument for not following the EEOC’s long-established view,
he said.

The law’s legislative history further supports rejection of the position that older
job applicants may only sue for disparate-treatment discrimination, the court added.
Congress’
focus in passing the ADEA in 1967 was partly on the barriers to employment older workers
face, not just discrimination they may be subjected to after being hired, the court
said.

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